On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 08-07-0632.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 29, 2012
Before Judges Sapp-Peterson and Ostrer.
Following denial of his motion to suppress evidence seized from a warrantless search, defendant Bobby Hayes entered a plea of guilty to second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b. Pursuant to the plea agreement, the court sentenced defendant to a term of five years, with a three-year period of parole ineligibility, and upon the State's motion, dismissed the remaining four counts of the indictment charging various third and fourth-degree crimes. Defendant now appeals from the denial of his suppression motion. We affirm.
One witness testified at the suppression hearing, Millville Police Lieutenant Edward Zadroga. The record evidence reflects the following: Lt. Zadroga was on patrol near Ware Avenue and Main Street in Millville at around 7:00 p.m. on May 21, 2008. While stopped at an intersection, a woman pulled up next to him and rolled down her window. She appeared "visibly shaken, upset, and nervous." She said that she had just come from the Wawa convenience store within view of the intersection and she overheard four black males there talking about robbing the store. She indicated the men were on the east side of the store. She did not provide any further descriptive details about the men, and Lt. Zadroga did not stop to obtain the woman's name, or to take her license plate.
He immediately proceeded to the Wawa, a couple hundred feet from the intersection and arrived in roughly thirty seconds. He pulled into a parking space even with the east side of the store and saw four black males, huddled together, some to his right and some to his left, all at least twenty-five feet from the front door. He did not see anyone else entering or leaving the store, nor was there anyone else near the east wall. As Lt. Zadroga left his vehicle, the men turned toward him and he made eye contact with all four men. Lt. Zadroga directed them to take their hands out of their pockets, and walk near the wall on the east side of the store "so they were all contained."
Three cooperated and defendant did not. Standing eight to ten feet away, defendant accused Lt. Zadroga of harassing him and had no reason to ask him to stand near the wall. Lt. Zadroga responded by telling defendant he would explain everything, but he should join the other men.
Meanwhile, Lt. Zadroga was attentive to the men's hands, mindful that if a robbery were planned, one might possess a weapon. Three men put their hands on the wall, as if preparing for a pat-down, and Lt. Zadroga told them there was no need to do that, they just needed to take their hands out of their pockets. However, Hayes kept his right hand in his pocket despite the lieutenant's repeated request that he remove it. He continued to refuse to stand near the wall, and continued to speak to the lieutenant.
Coincidentally, an off-duty sergeant had arrived at the Wawa to use the ATM, noticed Lt. Zadroga and the four men, and approached, letting Lt. Zadroga know he was available to assist. The sergeant's presence enabled Lt. Zadroga to focus all his attention on defendant, after he asked the sergeant to keep an eye on the other three.
Then, an elderly woman exited the store, approached Lt. Zadroga from behind, and stated, "That's my son," referring to defendant. She was loud and boisterous. Lt. Zadroga asked the woman to step back, but she refused and continued yelling as she stood behind the officer. In the meantime, defendant continued to refuse to take his hand out of his pocket. Lt. Zadroga drew his weapon, at which point defendant "started to meander over to the wall," facing away from the officer. Lt. Zadroga was concerned that defendant possessed a weapon.
Lt. Zadroga told defendant to put his hands against the wall, and announced he was going to conduct a pat-down. At that point, defendant placed both hands on the wall, Lt. Zadroga began patting down defendant's right side first and detected a hard object that he believed was "quite possibly a gun." As he put his hand on the object, defendant pulled away. Lt. Zadroga announced to the sergeant that he detected a gun. Defendant and the lieutenant wrestled on the ground; defendant stood up, tearing his sweatshirt from Lt. Zadroga's hand. As the assisting sergeant grabbed defendant, he swung and hit the sergeant on the head, then broke free and fled the scene, prompting a foot pursuit.
Lt. Zadroga followed defendant as he ran north into a city park, and then near tennis courts, where he discarded a handgun under a parked school bus. Defendant was ultimately ...